When it comes to drug possession, the seriousness of the charges against you generally depends on three factors:
- The intent associated with the possession
- The quantity of the drug possessed
- The type of drug possessed
Further, there may be a large disparity between the nature and extent of your potential sentence depending on whether you’ve been charged in federal or state court. Understanding the nature of both Pennsylvania and federal drug possession laws and can help you make an informed decision about how to best exercise your rights after you’ve been charged with a drug-related offense.
However, how the laws of drug possession apply to you depends heavily on the facts at hand and the office prosecuting your case. Having an experienced Philadelphia drug possession defense attorney on your side who is familiar with the idiosyncrasies of both state and federal drug possession laws can make all the difference in your case.
Categories of Pennsylvania Drug Possession
Drug Possession in the Commonwealth of Pennsylvania is often charged as “Knowing and Intentional Possession,” often abbreviated as a “K&I” by police. A K&I is more specifically a violation of Title 35, § 780-113(a)(16) of the Pennsylvania Code, which prohibits “[k]nowingly or intentionally possessing a controlled or counterfeit substance.” In layman’s terms, this means that you are charged with simple possession of narcotics as a misdemeanor. A conviction under § 780-113(a)(16) is punishable by less than one year in prison, a fine not exceeding $5,000 or both. However, if you are charged with possession of Gamma Hydroxybutyric Acid (“G”, “GHB,” or “Liquid E”) or a derivative thereof, then even this simple possession charge is punishable as a felony with up to fifteen (15) years in prison or a fine up to $250,000 dollars. This disparity is generally related to the danger to human life associated with even a small amount of GHB, as opposed to the minor health dangers associated with other controlled substances, such as marijuana.
Unlike a traditional K&I, however, if you are charged with a violation of § 780-113(a)(30), this means that you’ve been charged with the crime of possession of a controlled substance with intent to manufacture or deliver the controlled substance illegally. This is the more serious Possession with the Intent to Deliver (PWID) charge, and in other words, you’ve been charged as a drug dealer or drug trafficker. Whether this is punishable as a felony or misdemeanor depends on the nature of the substance possessed, but it is most often a felony.
For example, possession with the intent to deliver any of the following Schedule I and II narcotic controlled substances or a counterfeit thereof is punishable as a felony with up to 15 years in prison:
You will notice that marijuana is still included on the DEA’s list of Schedule I controlled substances, and there are even drugs on the list that you may have taken for pain, such as oxycodone or morphine. Not everything listed is actually “illegal,” which is the general difference between Schedule I and Schedule II controlled substances. So, for example, if you had a valid prescription for Oxycodone but attempted to sell or even give half a bottle away to a friend in pain, this is still chargeable as a PWID in Pennsylvania.
It is the element of intent that often differentiates a misdemeanor possession crime from a felony distribution crime, and the amount and type of the substance possessed will often dictate the level of punishment. However, the element of intent is not often apparent to police and must be proved by circumstantial evidence. Often the police will look at the nature of the substance, the amount of the substance possessed, and the presence or absence of drug paraphernalia in order to determine whether the drugs possessed were solely intended for personal use or meant for sale as part of an enterprise. The police will also look for cash, ledgers, and books of contacts in the location where the drugs were found in order to determine whether the felony charge of PWID should apply.
The Philadelphia criminal defense attorneys at The Zeiger Firm have years of experience dealing with drug possession cases. Our lawyers have successfully litigated motions, bench trials, jury trials, and appeals in knowing and intentional possession (K&I) cases as well as Possession with Intent to Deliver (PWID) cases. They may be able to have certain charges reduced or dismissed if the evidence is insufficient to prove you knowingly and intentionally possessed a controlled substance. In fact, many of those arrested for selling drugs are in fact only drug users, overcharged and jailed rather than given the treatment they need and desire.
Our lawyers take special pride in aggressively defending against drug charges because we deeply believe that the “War On Drugs” has done far more harm than good. From destroying families and communities to imprisoning non-violent first-time offenders, the system is out of control and The Zeiger Firm will fight long and hard to prevent the dishonest convictions that happen every day.
Elements of Pennsylvania Drug Possession
As stated herein, there are many possible drug-related charges in Pennsylvania. Drug charges may be relatively minor, such as possession of a small amount of certain drugs, or they may be more severe, such as manufacturing, distributing and delivering drugs. Generally, the criminal charges increase depending upon the type and quantity of drugs a person possesses and whether a person is charged with only possession or intended distribution of the illegal narcotics.
Under Pennsylvania law, a conviction for drug possession requires proof, beyond a reasonable doubt, that the defendant:
- Knowingly and intentionally possessed a controlled substance without a valid prescription
- Knew the drug was an illegal controlled substance
- Had actual control or possession of the drug
Though drug possession alone is considered a relatively minor drug crime, its penalties can be severe. Many cases carry “mandatory” penalties, which a court must impose. For example, in Pennsylvania, simple possession of marijuana has a “mandatory minimum” six-month loss of your driver’s license.
Because the prosecution (the state attorney pressing charges against you) has the burden of proving that you are guilty of drug possession or intent to distribute beyond a reasonable doubt, she must have evidence sufficient to show the court that you are guilty of each of the elements listed above. This means that a prosecutor must first prove that you knew you possessed an illegal substance. For example, if you are accidentally given the wrong prescription when you go to the pharmacy, you do not “knowingly” possess the un-prescribed oxycodone if it is found after you’re pulled over for speeding. Along the same vein, your possession of the substance has to be intentional. If someone places an illegal substance in your luggage without your knowledge before you go through airport security, then you never knowingly possessed this substance. This also rings true if someone has stored illegal substances in your home or car without your express or implied consent.
Even if you are charged because the police believe you knew of the substance’s existence, this does not mean they have the evidence to prove such before a judge or jury. The next element the prosecutor for the Commonwealth must generally prove when it comes to drug possession offenses is whether you had actual control over or possession of the controlled substance. There are two different types of possession/control, actual and constructive.
Actual possession generally occurs when the police find the illegal substance on your person or attached thereto, such as in a purse. Constructive possession, however, can be more difficult to prove. When the prosecutor is arguing that you had constructive possession of the controlled substance, it means that the substance was not found on your person but rather near you or in an area subject to your control. For example, if the drugs are found in your car, under the floorboard of your room, or in your home, the police may imply that they were in your control and possession.
Merely being present in a house or car where drugs are found, however, is not enough to prove that they were actually in your possession or control. There are those who reside in multi-unit dwellings where they know controlled substances are hidden, but that does not mean they have possession or control of those substances. They may simply allow someone to hide those substances in their vicinities because they are afraid of violence or gang activity. There may not be enough evidence here to prove that you actually had possession or control of the controlled substance, and the drug possession attorneys at The Zeiger Firm can argue that you are simply a victim, like many others, of gang-related activities.
Federal Drug-Related Crimes
Did you know that, according to the Federal Bureau of Prisons, nearly 46% of all inmates are incarcerated on drug charges? With the hundreds of crimes one can be federally charged with, this number is a staggering reflection of how drug crimes are often overcharged. When you have been charged with possession of drugs, you need an attorney who understands the laws, rules, and procedures that apply to drug cases, which differ dramatically depending upon whether your case is in Pennsylvania or federal court.
Mandatory federal drug sentencing guidelines tend to be much harsher than their state-based counterparts, and unlike in Pennsylvania, there is no parole in the federal prison system. In fact, a recent federal report found that offenders in the federal system charged and convicted of a crime with a mandatory minimum penalty served an average of 110 months in prison, nearly four times what offenders typically serve for crimes that do not have mandatory minimum punishments. Federal drug-trafficking offenses, which are similar to possession with intent to distribute offenses if the drugs are coming from or crossing over state lines, carry some harsh mandatory minimum penalties depending on the weight and nature of the controlled substance.
For example, if you are found with between 100 and 999 grams of heroin, you are subject to a five-year mandatory minimum term in prison if convicted. Even the federal judge has little to no authority to override a mandatory minimum sentence, which is set by Congress. And if you are found with over 1 KG of heroin, then the mandatory minimum sentence is 10 years imprisonment, again with no possibility of parole. You should be aware, however, that this is just the minimum sentence, and the judge has the discretion to increase your sentence depending on your criminal history and extenuating circumstances, such as the use of a firearm during a drug deal.
The nature of the substance possessed is also important in these cases. For example, you would need to be found with over 1,000 KG of marijuana in order to be subject to the same 10-year mandatory minimum prison term applicable to those found with 1 KG of heroin. This is because heroin is considered to have no medical value, and illegal in all forms. If you are found to be in possession of quantities of different types of controlled substances, however, then there is actually a conversion chart that is used to determine what the overall “weight” of the drugs are for sentencing purposes. This is accomplished by giving every controlled substance a “marijuana value,” which is used as a common denominator.
It may seem confusing if you receive an indictment or presentencing report that claims you were in possession of an exuberant amount of marijuana when such is simply not the case. However, it may have been a federal conversion number if you were found to have been in possession of different types of drugs. Because these weights can be added together to trigger certain minimum sentencing guidelines, a drug possession defense attorney should review your indictment for accuracy. He may be able to argue that the conversion was inaccurate and as such you should not be subject to certain mandatory minimum sentences.
Recent Changes in Federal Drug Possession Law
When it comes to federal drug crimes, you may have heard on the news how there was a big controversy because of the different sentencing thresholds for powder cocaine and crack cocaine. Before the Fair Sentencing Act was signed into law in 2010, one needed to possess 100 times the amount of powder cocaine than crack cocaine in order to be subject to certain mandatory minimum punishments. It was presumed that this disparity existed, whether intentionally or otherwise, because African-American offenders tended to be found in possession of crack cocaine, while wealthier white offenders were more often found in possession of powder cocaine. Today, 500 grams of powder cocaine will trigger the five-year minimum threshold, while only 28 grams of crack cocaine are needed to trigger that same threshold. Further, it is no longer legal to impose a mandatory minimum sentence on those convicted of simple possession of crack cocaine without the intent to distribute.
The recent changes to the federal drug sentencing guidelines were also made retroactive to many offenders, which means that those already convicted of a drug-related crime who were serving their sentences were eligible to have their previous drug-related sentences drastically reduced. Some offenders were even set free years before their anticipated release date. Accordingly, it is important to have a drug possession attorney on your side who understands that minor differences in the court’s interpretation of the facts of your case may save you from serving undeserved years in federal prison. It is also important to have an attorney who can advocate for your equality and is constantly monitoring retroactive changes to federal drug laws that may reduce your sentence if you are already in prison. Not all lawyers are equipped to practice in federal court, as the rules of criminal procedure are vastly different, as are the rules for guilty pleas and drug sentencing.
The Zeiger Firm has the experienced drug defense attorneys you need to protect your rights if you are charged with a federal drug offense and they will continue to monitor the law for changes that might benefit you even if you decide to plead guilty or have already been convicted.
Drug Sentencing Factors
Especially if you have been charged with a drug-related offense in federal court, you may be surprised to learn that there is normally about a three-month gap between your guilty plea (or guilty verdict) and your actual sentencing hearing before the judge. This gap is intended to allow your probation officer to prepare a sentencing report for the judge that will set out the following:
- Your criminal history
- Family background
- Work situation
- Educational history
- Notable accomplishments such as military service
- Any aggravating factors relating to the crime.
Certain positive factors, such as whether you cooperated with the police, and any aggravating factors, such as the use of a weapon during the commission of the crime, are actually converted to points, which are added or subtracted from the “base” points assigned to the drug offense. The more serious the “base” offense, the higher its starting point value. The resulting number is then paired with your criminal history level, typically ranging from “0”, meaning no criminal history, to “VI”, meaning that you have either a very serious or extensive criminal history. A conversion table is then used to create a sentencing “range” for the judge. However, your defense attorney will be provided with an advanced copy of this report, and he or she has the right to challenge the probation officer’s findings and object to certain factors that might increase your sentencing range.
For example, if the probation officer claims that dealing drugs was your primary means of supporting yourself such that you are charged with a “lifestyle” increase, your attorney can present evidence of your legal income and argue that this was not the case and your sentencing range should not be increased. Likewise, your attorney can also argue that you were cooperative and cordial with the police and deserve a reduction. Your attorney can also gather letters of recommendation from friends, family, co-workers, and/or clergymen attesting to your character, family life, and involvement in the community to present to the judge along with the sentencing report. Once the final sentencing range is determined – for example, 5 to 9 years – you will typically be sentenced within this range. This is designed to prevent sentencing disparities between similarly situated offenders.
However, the judge is not required to sentence you within this range provided there is no mandatory minimum sentence as set by Congress, and the judge must consider the following factors before you are sentenced:
- The nature and circumstances of the offense
- Your history and characteristics
- The seriousness of the offense
- Deferral of future criminal conduct
- Whether restitution is due or was paid to any victims
- Whether the sentence will help protect the public from future crimes
- The kinds and types of punishments and sentences available.
If the judge does not consider these factors, your attorney may be able to file an appeal to have you resentenced. Your defense attorney also has the right to argue that your characteristics merit special considerations and that you should not be sentenced in accordance with the harsh guidelines. Our firm works with investigators and experts to fight cases and for your rights. At the same time, we always are prepared with sentencing alternatives to present to judges. Even if after speaking with your defense attorney you decided to plead guilty to a drug-related offense as opposed to go to trial, there is still a lot of work to do to ensure that your sentence is no more than necessary in relation to the crime.
We work closely with social workers, treatment facilities and healthcare professionals to provide mitigation reports and earn our clients placement in drug programs. Even if you are required to serve a federal minimum sentence, the judge often has the discretion to recommend that you be sent to a facility that provides you with needed educational and vocational services. Your attorney can advocate for these preferences on your behalf as well as review each factor of your case to ensure that there was no misconduct during the investigation, prosecution, and sentencing process. If misconduct is discovered, then your attorney may be able to file an appeal on your behalf to get the conviction or sentence vacated.
Drug Possession Appeals
As a result of the war on drugs, even federal judges have been known to sign letters requesting clemency when they were forced to sentence certain drug offenders under harsh minimum guidelines. Further, certain attorneys have taken matters into their own hands when challenging unjust disparities in the law, such as the crack cocaine guidelines. Accordingly, even if you have already been convicted of a Pennsylvania or federal drug-related offense, the attorneys at the Zeiger Firm may still be able to fight for you through an appeal. In Pennsylvania, there are generally two types of appeals: a direct appeal and a petition under the Post Conviction Relief Act (PCRA).
In federal court, you may be able to file an appeal to the circuit court or even the United States Supreme Court, and if you have already done so, you can generally petition for relief under habeas corpus. However, you would be surprised how few criminal defense attorneys are prepared to take a case beyond the trial stage or have experience appealing a Pennsylvania drug conviction.
Your attorney needs to know what to look for on appeal and how to preserve the issues most likely to achieve a ruling in your favor. Generally, you are only permitted one direct appeal and one PCRA petition after your sentence. Although, this is a fluid standard as there may be a complex issue of drug sentencing laws that change over the course of many years, don’t waste your appeals! In drug-related cases, you need an attorney who recognizes that small differences are enormous. We advocate zealously, never forgetting that our most important goal is obtaining the best results for our clients, whether that means fighting procedural battles or representing our clients before a judge or jury. We work hard for our clients, explaining their options and keeping them updated about the status of their cases and appeals.
Call a Pennsylvania Drug Possession and Criminal Defense Attorney in Philadelphia Today
When you need a Philadelphia criminal defense attorney to defend you when you or a loved one have been arrested and charged with drug possession, whether it is simple possession or possession with intent to distribute, contact The Zeiger Firm. Our criminal defense attorneys have represented numerous people charged with drug and narcotic crimes in both federal and state court, and we understand the differences between the various crimes and will zealously defend you in state and federal court in Philadelphia, Pennsylvania.
The facts are everything in certain drug cases, especially when there is no direct evidence as to intent and the drugs were not in your actual possession. Remember, you are innocent until proven guilty and the state has the burden of proving each criminal element. Whether you decide to plead guilty, take your case to trial, or have already been convicted of a drug possession crime and are looking to appeal, we have the attorney for you. To arrange a consultation, please give us a call at 215-546-0340 or send us an email via the form below.